On a covenant to

pay rent

lessee

remains

liable even after assignment.

Liability

of tenant

2. On December 25, 1882, one A. B., being then the owner of the said premises, lawfully evicted the defendant from the possession of the said premises.

value of a conservatory he had erected. (Rolph v. Crouch, L. R. 3 Ex. 44; 37 L. J. Ex. 8. And see Moors-le-Blanch v. Wilson, L. R. 8 C. P. 227.)

As to covenants to renew on performance of a condition precedent, see Baxter v. Bidwell, 18 Ch. Div. 238.

Covenants or promises of tenant-rent.]-The lessor can recover rent accrued due under a demise whether by deed or simple contract, and whether there has been an actual occupation under the demise or not. (1 Wms. Saund. 202, a, n. 1.)

When the demise is by deed, and there is a covenant for the payment of rent, though the lessee may have assigned the lease, and the landlord have accepted the assignee, the lessee remains liable (1 Wms. Saund. 240; 2 Wms. Saund. 302, n. (5)), and usually protects himself in such circumstances by a covenant by the assignee to indemnify him. There is, however, an implied promise to indemnify. (See “Money.") The mere reservation of rent in a lease by deed, in the absence of a covenant for payment of it, would not render the lessee liable after assignment. (Wadham v. Marlowe, 8 East, 314.)

An informality in the execution of a lease by the lessor will not affect the lessee's covenants, whether to pay rent or otherwise. (Toler v. Slater, L. R. 3 Q. B. 42.)

In an action for rent the plaintiff must establish one of two things, either privity of estate or privity of contract. The benefit of parol contracts does not run with the reversion. Therefore where S. made a parol demise to M. from year to year, and M. by deed assigned his interest to a third party, and S. assigned his reversion to the plaintiffs, it was held, though neither S. nor the plaintiffs had accepted the third party as their tenant, that the plaintiffs could not maintain an action for rent in arrears against M. (Allcock v. Moorhouse, 9 Q. B. Div. 366.) Where the lessor has merely assigned a portion of his reversion, the covenant to pay rent may be divisible. (Mayor of Swansea v. Thomas, 10 Q. B. D. 48.)

Liability for repairs.]-It is usual in leases of houses to introduce a covenant to repair during the term, and to leave in a proper state of for repairs. reparation, and also a covenant to repair after notice. These covenants are usually distinct and independent, but they may be so framed as only to form one covenant, so that the one is engrafted on the other. In the former case a tenant is liable for non-repair, though no notice to repair has been given; but in the latter case no liability arises until after notice to repair has been given. (See Woodfall's Landlord and Tenant, p. 486, 9th ed., for the tests for determining when the covenants are separate and when dependent.) A breach of covenant to put in repair is not a continuing breach. (Coward v. Gregory, L. R. 2 C. P. 153.)

Measure of

damages in actions

for nonrepair.

No contract to repair is implied from the fact of the relation of landlord and tenant being created. (Standen v. Christmas, 10 Q. B. 135 ; and see Granger v. Collins, 6 M. & W. 458.)

Where the tenant covenanted to keep the demised premises in repair, the same being first put into repair by the landlord, the repairing by the landlord is a condition precedent to the tenant's obligation on the covenant. (Neale v. Ratcliffe, 20 L. J. Q. B. 130 ; Coward v. Gregory, supra.) Measure of damage.]—In actions for breaches of covenant or promise to repair, the measure of damages during the continuance of the lease is the diminution of the value of the reversion. (Turner v. Lamb, 14 M. & W. 412; Doe v. Rowlands, 9 C. & P. 734; Smith v. Peat. 23 L. J. Ex.

Action for Rent and Royalty on Lease of Colliery, and for Breach of Covenant to work it in a miner-like Manner.

1. By a lease under seal from the plaintiff and A. B. to J. S., dated the 17th of October, 1880, of the Free Hope Colliery, in

84; Mills v. East London Union, L. R. 8 C. P. 79; Williams v. Williams, L. R. 9 C. P. 659.) Where the landlord's interest in the lease is determined by forfeiture or otherwise, consequent upon the tenant's breach of covenant to repair, the preceding test would be inapplicable, and the measure of damages would be the value of the landlord's term, or, if the forfeiture was for other breaches personal to the landlord as well, the sum it would cost to put the premises in the state of repair agreed upon. (Davies v. Underwood, 27 L. J. Ex. 113; 2 H. & M. 570.) The measure of damage also depends on the age, character, and state of the premises on the creation of the tenancy, the tenant's liability being measured by reference to the condition of the premises at that time. (Payne v. Haine, 16 M. & W. 541; Stanley v. Towgood, 3 Bing. N. C. 4 ; Burdett v. Withers, 7 A. & E. 136.) The fact that the dilapidation prevented the landlord from letting, while the repairs were being done, may semble be considered where special damages are claimed. (Woods v. Page, 1 Bing. N. C. 467.) If a second action be brought on a covenant to keep in repair, the verdict in the former action may be given in evidence in mitigation of damages.) (Coward v. Gregory, supra.)

Where the tenant has sublet, and the underlessee has neglected to repair, the tenant in an action against him may claim as special damage the forfeiture of his lease if it was solely on account of that breach of covenant. (Clow v. Brogden, 2 M. & G. 39), or the loss sustained by him through being sued for breach of the covenant to repair. (Walker v. Hatton, 10 M. & W. 249.)

In cases where the lessor covenants to repair, the tenant, in an action for non-repair, may allege as special damage that he was unable to carry on his trade in the premises, and was obliged to remove. (Green v. Eales, 2 Q. B. 225.)

As to relief against forfeiture for non-repair, see now the Conveyancing and Law of Property Act, 1881, sect. 14.

State of premises at

commence

ment of

tenancy to

be con

sidered.

Tenant may recover from sub-tenant for forfei ture of lease for non-repair.

runs with

Covenant to insure.]-The covenant to keep buildings insured against Covenant fire runs with the land, as the 14 Geo. 3, c. 78, s. 83, enables the land- to insure lord to have the insurance money laid out in reinstating the premises, so that the covenant with the aid of the statute amounts to a covenant to land. repair. (Vernon v. Smith, 5 B. & A. 1.) The operation of this section is not confined to the metropolitan district. (Ex parte Gorley, 34 L. J. Bkcy. 1.)

A covenant"to insure at all times previously to the expiration of the term," is satisfied by an insurance effected forthwith after the execution of the lease.

A covenant to insure in the name of A. is not satisfied by an insurance in the joint names of A. and the lessee. (Pennial v. Harborne, 11 Q. B. 368. But see Havens v. Middleton, 22 L. J. Ch. 746.) Covenant to cultivate in a husbandlike manner, &c.]—Actions on covenants of this kind are not very common, particularly during recent years. The reader is referred to Woodfall's Landlord and Tenant, 11th ed., for the law on the subject.

If the plaintiff means to rely on bad cultivation by the defendant, he should state that distinctly as his ground of complaint, as under a claim for non-cultivation, he would not be allowed to give evidence of bad culti

Covenant
to cultivate
in hus-

bandlike

manner.

Covenant not to carry on particular trade.

Covenant

not to

assign.

Where as signment subject to

consent.

the parishes of A. & K., Lancashire, for seven years from the 29th of September, 1883, J. S. covenanted with the plaintiff and A. B. as follows:

(1) To pay a yearly minimum or dead rent of £150, payable

vation merely, though it is probable that the plaintiff would in such a case obtain leave to amend on the trial on terms, unless where on the amendment he would only be entitled to merely nominal damages. (Times Insurance Co. v. Hawke, 28 L. J. Ex. 317.) Where covenants of this kind are controlled or modified by particular customs as to the mode of cultivation or as to the rights of the parties on the termination of the tenancy, the plaintiff should mention them in the statement of claim. If, however, the plaintiff ignores the custom, but the defendant relies on it, it is for the latter to set it out in his statement of defence.

Covenant not to carry on a particular trade on the premises.]—A covenant not to do anything on the demised premises which may be a nuisance to the occupiers of the adjoining premises, was held not to be broken by opening a national school thereon. (Harrison v. Good, L. R. 11 Eq. 338.) A covenant not to use the premises as a beerhouse, inn, or public-house for the sale of spirituous liquors is not broken by the sale of beer by retail under a license preventing its being drunk on the premises. (London & North-Western Rail. Co. v. Garnett, L. R. 9 Eq. 26.) Noris a covenant not to use a building as a public-house for the sale of wine, beer, malt liquors, or spirits broken by such sale under a similar license. (Pearse v. Coates, L. R. 2 Eq. 689.) A covenant that the trade or calling of a hotel or tavern-keeper, publican, beershop-keeper, or seller by retail of wine, beer, spirits, or spirituous liquors should not be carried on on the premises, was held. per James, V.C., on special grounds, not broken by the sale of wine in bottles by a grocer in the ordinary course of his trade. (Jones v. Bone, L. R. 9 Eq. 674. But see Feilden v. Slater, L. R. 7 Eq. 523, in which a decision apparently inconsistent with that in Jones v. Bone is given, and which must be considered as overruled by it.)

As to the construction of covenants not to carry on a particular trade, and to pay an extra rent if it should be carried on, see Weston v. Managers of Metropolitan Asylum District, 8 Q. B. Div. 387.

Covenant not to assign.]—A sub-demise is not a breach of this cove. nant, except it be of the whole term. (Beardman v. Wilson, L. R. 4 C. P. 57. See 1 Sm. L. C., 7th ed., Spencer's case.) It would be different if the covenant were "not to let, or assign over" the demised premises, "or any part thereof." (Gregson v. Harrison, 2 T. R. 425.) Where the covenant contained words against "demising," leasing," or "aliening," the premises, or any part thereof, for the term, or any part thereof, it was held a breach to give a partner of the tenant the exclusive possession of part of the house. (Dingley v. Sales, 1 M. & S. 297.) Taking a lodger is not a breach of a covenant not to under-let the house, unless there be a distinct agreement for the exclusive occupation of particular rooms. (Greenslade v. Tapscott, 1 C. M. & R. 59.) An assignment by one joint assignee of a lease to the other is a breach of the covenant not to assign. Varley v. Coppard, L. R. 7 C. P. 505.)

A covenant not to assign without the consent of the lessor, such consent not to be arbitrarily withheld, does not entail a forfeiture, or enable the lessor to sue when the tenant assigns after the lessor has arbitrarily refused his consent. The tenant's remedy is not to sue for the arbitrary refusal, but to assign without consent. The refusal must be unfair and unreasonable to enable the tenant to disregard it, and a refusal upon an expectation that the property would soon be taken under the Lands Clauses Act is not unfair and unreasonable. (Treloar v. Bigge, L. R. 9

by instalments on the usual quarter day, and a yearly
rent or royalty of £ per foot of thickness for
every statute acre surface measure of coal worked or
gotten during the time after the first 150 feet;

Ex. 147, 155; 43 L. J. Ex. 95; 22 W. R. 843: Sear v. House Property
Investment Society, 16 Ch. Div. 387.)

Measure of damages for breach of covenant not to assign.]-The measure of damages in an action for breach of covenant not to assign is such an amount as will put the plaintiff in the same position as if the covenant had not been broken. (Williams v. Earle, L. R. 3 Q. B. 739; 37 L. J. Q. B. 231.)

Covenant or promise to yield possession on the determination of the lease.]-In actions under this covenant or promise the landlord is entitled to recover all the loss he has sustained by not being put in entire possession of the premises at the end of the term; thus he is entitled to a sum equivalent to the rent he has lost, and to the costs of an ejectment against an under-tenant, who has wrongfully held over. (Henderson v. Squire, L. R. 4 Q. B. 170; 38 L. J. Q. B. 73; 19 L. T. 601.) So he may recover for damages occasioned by his having to compromise an action by a person to whom he had let the premises. (Bramley v. Chesterton, 2 C. B. N. S. 592; 27 L. J. C. P. 23.) And the acceptance of rent for the period of holding over does not affect the landlord's right to recover on the promise or covenant. (Ib.)

Measure of damages for breach of covenant

not to

assign.

Covenant

to yield up at termina

tion of

term.

Actions against assignees of lease.]-The 8 & 9 Vict. c. 106, s. 3, re- Actions quires assignments to be by deed, but as leases for the whole remaining against terms are but assignments thereof (Beardman v. Wilson, L. R. 4 C. P. 57), assignees if the remainder of the term does not exceed three years, it is clear that of lease. the assignment of it may in effect be made by parol in the form of an underlease, as neither the Statute of Frauds nor the 8 & 9 Vict. c. 106, applies to such a case. It seems that an executor de son tort, who has entered on the demised premises and taken possession of the lease, will be held liable as an assignee. (Paull v. Simpson, 9 Q. B. 365.) Where a person has entered into possession of or received the rents and profits of premises demised to the intestate, and paid the rent reserved thereon, he is estopped from denying that he is the assignee of the lease, even though he is not chargeable as executor de son tort. (Williams v. Heales, L. R. 9 C. P. 177; 43 L. J. C. P. 80; 30 L. T. 20; 22 W. R. 317.)

A trustee to whom a debtor's estate has been assigned for the benefit Trustee of creditors is liable as assignee if he has not repudiated the lease. (White under v. Hunt, L. R. 6 Ex. 32; 40 L. J. Ex. 23.) Where the assignee of a lease assignment became bankrupt and his trustee disclaimed, it was held that the trustee for benefit was at all events liable for rent falling due between the adjudication and of creditors disclaimer. (Smith v. North, L. R. 7 Ex. 242. But see now Titterton liable on v. Cooper, 9 Q B. D. 473.)

lease not

A covenant not to assign without license where the assigns are named, repudiated. binds the assignee of the lease, although the assignment was made without license. (Williams v. Earle, L. R. 3 Q. B. 739.) But it is only the assignee of the whole term that is bound. (West v. Dəbb, L. R. 5 Q. B. 460, Ex. Ch.) The assignee can resist an action for breach of covenant by showing that he assigned away before breach, as he is only liable to the lessor for breaches during the time he is assignee. (Paul v. Nurse, 8 B. & C. 486.)

The execution of the assignment may be sufficient without delivery of it to the assignee, as where it remains in the hands of the assignee's solicitor, who kept it under a lien. (Odell v. Wake, 3 Camp. 394.) Notice of the assignment to the plaintiff is unnecessary. The fact that the

Assignment to pauper not invalid on

ground of fraud.

Actions for
double
rent.

11 Geo. 2,
c. 19.

Act only applies where

tenant has given valid

notice.

Landlord

may claim

(2) To work and get the coal in a usual and miner-like

manner.

2. On November 1, 1881, A. B. died.

3. On November 7, 1881, J. S. assigned to the defendant.

assignment was made to a man of straw in order to get rid of the liability would not affect its validity as amounting to a fraud. (Lekeux v. Nash, 2 Str. 1221; Onslow v. Corrie, 2 Madd. 330; Hopkinson v. Lovering, 11 Q. B. D. 92.) But if there was a secret trust in favour of the assignor, this would be a fraud, and would avoid the assignment. (Er parte Budd, 31 L. J. Ch. 4, and Ex parte Bugg, 35 L. J. Ch. 43.) The assignee may after the assignment be sued for breaches by him before assignment. (Harley v. King, 2 C. M. & R. 18.)

An assignee is not liable for breaches committed before the assignment to him. (See Coward v. Gregory, L. R. 2 C. P. 153.)

A trustee in bankruptcy becomes assignee in law of the leasehold estates of the bankrupt, but, under s. 55 of the Bankruptcy Act, 1883, he is entitled, with the leave of the Court, to disclaim unprofitable leases. If after notice from the landlord to elect he should not disclaim within the time appointed, he may still relieve himself of liability by assigning to a pauper. (Hopkinson v. Lovering, 11 Q. B. Div. 92.) If he should neither disclaim nor assign, he becomes personally liable in respect of all breaches of covenant in the leases committed after his appointment. (Titterton v. Cooper, 9 Q. B. Div. 473; Wilson v. Willani, 5 Ex. D. 155.) Where other persons than the bankrupt are interested in the lease, the disclaimer by the trustee only operates so far as to relieve the bankrupt, his estate, and the trustee, from liability. (Harding v. Preece, 9 Q. B. Div. 281; East & West India Dock Co. v. Hill, 22 Ch. Div. 14.)

Tenants holding over actions for double rent.]-By the 11 Geo. 2, c. 19, s. 18, "in case any tenant or tenants shall give notice of his, her, or their intention to quit the premises by him, her, or them holden at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, then the said tenant or tenants, his, her, or their executors or administrators shall from thenceforward pay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to be levied, sued for, and recovered at the same time and in the same manner as the single rent or sum before the giving such notice, could be levied, sued for, and recovered; and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid."

It has been held that this statute only applies where the tenant had the power of determining his tenancy by notice, and has given a valid notice for that purpose. (Johnstone v. Huddlestone, 4 B. & C. 922.) To bring a case within this provision, the holding over must be wilful and contumaceous, and not either by mistake or bona fide though unfounded claim of right. (Wright v. Smith, 5 Esp. 203; Swinfen v. Bacon, 30 L. J. Ex. 33 and 368.)

A person to whom the landlord granted a lease to commence on the determination of the defendant's tenancy is not a person entitled to the possession within the meaning of the above enactment, and cannot consequently maintain an action for double value under it. (Blatchford v. Cole, 28 L. J. C. P. 140.) The double value given by this Act is in the nature of a penalty, and therefore action must be brought to recover it within two years.

Independently of this provision a landlord may claim special damages from an overholding tenant in respect of damages, to which he has been